The Invisible Black Victim: How American Federalism Perpetuates ...

over in favor of national authority (Feeley & Rubin 2008). Lacking a clear, decisive national
consensus, however, congressional authority is inhibited by the fact that it lacks a
constitutional mandate to legislate on broad social welfare issues. While the federal courts
have given Congress a wide berth in its exercise of the Commerce Clause powers since the
New Deal, the Supreme Court does occasionally limit the scope of Congress's power based
on its reading of the Commerce Clause in Article I, Section 8 and the Tenth Amendment and
continues to hear cases challenging congressional authority to address major social policy
domains.2 While these challenges are rarely sustained, they can provide sufficient opposition
to fracture fragile coalitions or cause them to lose momentum (Dinan 2002). The recent
constitutional challenges by 14 state Attorneys General to the congressional health care bill
represent the most recent example of this long and storied history.3
More important, the fact that Congress has expanded the reach of its domestic policymaking
does not alter the fact that most social policy that affects the day-to-day lives of
citizensFpublic safety, education, transportation, public works, and health care, for
exampleFis often enacted by state and local governments. As a result, Congress not only has
an episodic mandate to address a great many social issues that affect rates of criminal
offending and victimization, but it also has few political incentives to address these thorny
issues. Put in stark terms, the U.S. government does not have clear constitutional
responsibility and accountability for legislating on the health, safety, and social welfare needs
of the polity as a whole. When Congress does legislate on broad social issuesF public safety,
social welfare, education, or the environment, for exampleFit often does so by shoehorning
policy into Article I, Section 8, or relying on enabling legislation from constitutional
amendments. While these strategies are often sufficient in the context of broad national
consensus, they represent weak grounds for the kind of policy that is demanded by vast and
deep inequalities across racial groups. Even on economic issues, where Congress's authority
is clearer, national lawmakers are frequently asked to justify the ability of Congress to trump
state power in this realm.4
A second distinctive feature of American federalism that has implications for understanding
racial inequality in crime and punishment is the multiple legal and legislative venues for
participation. This porousness can provide citizens with multiple locations for participation
(Baumgartner & Jones 2002; Pralle 2006). However, multiple centers of power also make it
difficult for the poor and low-resources groups to sustain pressure across a political landscape
that is navigable largely through sustained human, social, and fiscal capital. Multiple venues
can reinforce and exacerbate classic collective action problems, which disproportionately
disadvantage the poor and racial minorities (Brooks & Manza 2007; Miller 2007). Social
movement scholars have long recognized the importance of a group's capacity to mobilize
resources in order to successfully function as a pressure group (McCarthy & Zald 1987).
These resources need not be financial but can include significant numbers of highly
motivated, preference-intense people, and/or a public image that is highly favorable (see
Fiorina 1999; Schneider & Ingram 1993). Coupled with fiscal resources, these forms of
capital can help launch a narrowly focused interest group into a wide range of political and
legal venues, while othersFwith less financial support, more diffuse supporters, or a less
positive public imageFstruggle to maintain pressure at just one legislative locale. Thus,
federalism is an important element in understanding racial inequality not only because of the
space it has allowed states in blocking reform but also because of the limitations it imposes
on the power of the national government to ameliorate the conditions giving rise to crime and
violence and the obstacles it erects to collective action efforts of poorly resourced groups.